More work needed as medical marijuana law takes effect

OKLAHOMA CITY – The start of September brought some clarity to laws addressing Oklahoma’s rapidly growing and evolving medical marijuana industry, but important questions remain to be answered related to banking options for cannabis businesses and “safety sensitive” jobs that might exclude some Oklahomans from becoming medical marijuana users.

According to the Oklahoma Medical Marijuana Authority, several provisions of legislation passed earlier this year concerning cannabis and commerce have now taken effect. They include mandatory seed-to-sale inventory tracking, requiring medical marijuana businesses to invest in systems capable of reporting electronically to the state each step in the “life cycle” of a marijuana product. Other provisions of Oklahoma’s medical marijuana law beef up packaging and labeling requirements and define requirements for lab testing of harvest and product batches before the sale, transfer or processing of products.

Some other new and notable wrinkles in the law include:

Licensed growers are now authorized to sell seeds, flowers, or clones to other licensed growers; and licensed dispensaries can sell to other dispensaries.

Business applicants are now required to submit with their applications to the OMMA certificates of compliance completed by the political subdivisions where their businesses are located.

Business operators may now renew licenses online.

Stand-alone transporter licenses are a new business category, available to those who only want to take part in the transportation of products. Individual transporter agent licenses also are now available.

Podiatrists are now authorized to make recommendations for patients to get medical marijuana user licenses.

Patients may now get temporary 60-day user licenses. The fee will be $100 or $20 for those who qualify for a discount.

Veterans with a 100% disability rating from the U.S. Department of Veterans Affairs will now be able to receive a medical marijuana patient license with a discounted application fee of $20.

Even as the state attempts to clarify the legal landscape of its medical marijuana industry, work remains to be done at the federal level. Federal law still regards marijuana as an illegal drug and provides for sanctions of banks and other businesses that knowingly participate in cannabis commerce. The Justice Department of former President Barack Obama opted not to intervene as states began legalizing marijuana for medical or even recreational use, and the administration of President Donald Trump has adopted a similar hands-off approach.

During a press briefing held last week, Trump was asked if cannabis would be federally legalized while he is in office.

“We’re going to see what’s going on. It’s a very big subject and right now we are allowing states to make that decision,” Trump responded. “A lot of states are making that decision, but we’re allowing states to make that decision.”

In fact, medical marijuana is now legally available in 36 states and Washington D.C., and banks, insecure of their legal standing, have generally balked at providing services to the industry. That has forced many business owners to operate on a largely cash-only basis.

In a recent interview with The Journal Record, U.S. Rep. Tom Cole said the marijuana industry banking dilemma needs to be resolved, and soon, though he’s unsure how that might happen.

“Obama let the horse out of the barn and didn’t tell us how to catch it,” Cole said. “Now we’ve had two administrations in a row that won’t enforce federal law or offer us a framework on what to do in its place. That creates all kinds of problems (because) banks that are federally chartered can’t be dealing with drugs that are illegal. They need legal certainty.”

Cole said he has heard from banking executives who felt like they had to cancel accounts of people who are legitimate business owners because of connections those people have had in Oklahoma’s medical marijuana industry. He said he has heard, too, from police chiefs, sheriffs and others concerned about medical marijuana businesses being targets for robbery or other types of crime, including money laundering, because of the amount of business they do on a cash-only basis.

“So, the Congress is going to have to do something. It would help if we had executive guidance. You don’t want to send the president something he’s going to veto,” the Oklahoma Republican said.

Cole noted there is pending legislation known as the SAFE Banking Act that addresses the matter. The bill is currently at the committee level in Congress.

“I don’t know what the Senate will do either, and that’s the uncertainty here. It makes no sense to pass something that is not going anywhere, that the Senate won’t pass or the president won’t sign. That’s a dilemma.”

Another issue with thorny questions to resolve has to do with the Oklahoma Medical Marijuana and Patient Protection Act, implemented last week. The state law prohibits employers from denying people jobs or from disciplining or firing employees based solely on the basis of a positive test for marijuana components or metabolites. The problem, according to Lawrence Pasternack, a patient advocate with the Oklahoma Cannabis Liberty Alliance, is that the law leaves open the possibility of employers excluding medical marijuana users from “safety sensitive” jobs, which are not well-defined. To make matters worse, he said some employers may still want to use drug testing as a way to screen people out of safety sensitive jobs. Traditional urinalysis tests might show that a person used medical marijuana at some point in the recent past, but in no way would offer reliable evidence that the person arrived at work somehow incapacitated.

“I don’t think anybody has figured out the right way to address (the safety sensitive jobs issue),” Pasternack said, noting that other states are struggling with it too. “It is a legitimate concern. We just want and need a better a way to address it. … As far as these kinds of workplace tests go, they don’t indicate impairment. (The law and employers) need to figure out a way to address workplace impairment.”

Pasternak suggested that employers concerned about the performance of people in safety-sensitive jobs should consider another kind of test, one designed not to reveal evidence of marijuana use days or even weeks before, but evidence of alertness on-the-job. An example is Alert Meter by Predictive Safety. It’s advertised as a “graphical cognitive alertness test” that takes 60-90 seconds to take and can assess fitness for duty on a daily basis.

Tim Jenney, president of TEAM Professional Services, which manages drug and alcohol programs for more than 2,000 companies nationwide, suggested that Oklahoma employers incorporate provisions of the Oklahoma Medical Marijuana and Patient Protection Act by:

Identifying safety-sensitive positions in their company and updating job descriptions as necessary.

Revising drug and alcohol policies to include appropriate actions to be taken if an employee classified as safety-sensitive tests positive for THC.

Ensuring supervisors have completed reasonable suspicion training and are equipped to identify signs of impairment.

Educating employees about the law and the company’s policy.

Consider partnering with a third-party administrator to manage their drug and alcohol program to ensure they’re in compliance with state and federal laws.